Freedom of Press: A Touchstone of Democracy

This speech was delivered by Chief Justice Puno during the International Conference on Impunity and Press Freedom in Peninsula Manila on February 27, 2008.

Freedom of Press: A Touchstone of Democracy
by Chief Justice Reynato S. Puno

We are here now to strengthen democracy, especially one of its touchstones— the freedom of the press.

It is a noble thing that we set out to do, but it is also one which is difficult to accomplish. Thus, it is important that before we begin with our endeavor, we must first ensure that we all understand full who “we” are, where “here” is, why we are here “now,” and what “democracy” is basically all about. 

It is a dangerous time for those who report the truth. From 1192 to 2008, 679 journalists have been killed worldwide. The Philippines has the 5th highest number of incidents where journalists have been murdered. Since 2001, 70 journalists have been killed in the line of duty on Philippine soil. Of the cases filed as a result of these killings, only one has been resolved, 6 are undergoing trial, 18 are under investigation, 4 have been dismissed, and 4 are undergoing prosecution.

“We” are persons who can do something that will have a profound impact in defense of freedom of the press. “We” are the advocates, experts, journalists, and jurists coming from all over the world who share the same concern over the rampant human rights violations around us. I emphasize that it is “we” who can do something, because we can better effect change not in our individual stations, but as a group working together. 

“Here” is a conference organized by the Southeast Asian Press Alliance with the Center for Media Freedom and Responsibility aimed at three objectives: first, to contribute to ongoing multi-sectoral efforts, as well as national, regional, and international campaigns, to fight impunity in the Philippines by finding, discussing, and generating insights and models for enhancing the rule of law, free expression, and human rights in general; second, to bridge Philippine campaigns on impunity with similar efforts around the world; and third, to raise public awareness about impunity and its effect in the Philippines on both the freedoms of the press and of expression. “Here” is a forum for us to work together as a group.

“We” are “here” because of urgency of “now.” It is the culture of impunity that encourages attacks on journalists. Unless and until we do something to submerge this pernicious culture, these attacks will continue to litter our collective consciousness with corpses of people who are bearers of truth. 

“Democracy” is all about the voice of the people. It is, as John Stuart Mill defines it, “government by discussion.” Imperative to discussion are the cognate freedoms of information, of expression, and of the press. Hence, no less than the Universal Declaration of Human Rights assures that “Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference, and impart information and ideas through any media regardless of frontiers.” The dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.

Democracy in this country is under siege because bullets fired at the direction of journalists pierce not only human flesh, but also our republican ideals. In their Joint Declaration regarding International Mechanisms for Promoting Freedom of Expression, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression identify two threats to freedom of expression and the free flow of information and ideas, which have now reached crisis proportions in many parts of the world: first, dubbed censorship by killing, are attacks on journalists and others exercising their right to freedom of expression; and second, is the abuse of restrictive defamation and libel laws. In the same declaration, each State was reminded of its obligation to take adequate measures to end  the climate of impunity. Such measures should include devoting sufficient resources and attention to preventing attacks on journalists and others exercising their right to freedom of expression, investigating such attacks when they do occur, bringing those responsible to justice, and compensating victims. 

Let not our knees wobble. These to challenges, censorship by murders and the restraint of libel laws, have been with us since time immemorial. Legal historians trace the roots of freedom of expression in Athens, Greece as far back as 800-600 B.C. Even then, expressive freedom was given only to select “citizens” which did not include women, resident aliens and juveniles. The Athenian majority was not accorded the expressive freedom by their aristocratic rulers.

During the Roman time, freedom of expression was likewise severely restricted by the ruling class. The Caesars controlled the distribution of news to the people. Without exception, they smothered dissent against their government. They hounded their critics to their graves. 

So it was in England. Here the struggle to eliminate censorship took more than 500 years. The Crown of England was just as intolerant of criticisms. The 1274 De Scandalis Magmatum presaged the beginnings of seditious libel law. This edict proscribed political dissent. From the early 1500s, through the Puritan Revolution, until the late 17th century, printing was regulated by the Crown and the restrictions were implemented through the church. Scribes tell us that it was during Henry VIII’s reign that royal measures were enacted to censor heretical materials. Thus, there was a special law to restrict the distribution of William Tyndale’s English translation of the New Testament. The law states:

            There shall be no annotations or preambles in the Bibles or New Testaments in English. The Bibile shall not be read in English in any church. No women or artificers, prentices, journeymen, servingmen of the degree of yeomen or under, husbandmen, nor labourers, shall read the New Testament in English… anything contrary to the King’s instructions… shall be thereof convict… his first offense recant, for his second abjure and bearer a fagot, and for his third shall be adjudged an heretick, and be burned. (Neal 1855) 

The English Court of Star Chamber, a secret tribunal, was an instrument of censorship. It meted out such punishments as levying unlimited fines, imprisonment, the pillory, flogging, mutilation and branding. In 1630 for instance, a certain Alexander Leighten published “An Appeal to Parliament” in which he urged the superiority of the Scriptures over the monarchy. On orders of the Star Chamber, Leighten was taken to Westminster and was “whipped, had one of his ears cut off, his nose slit and one side of his face branded.” A week later, the mutilation was repeated on the other side of his face. In 1641, the Star Chamber was dissolved due to its surfeit of excesses. In fine, history tells us that no amount of mutilation, no amount of murders of truth tellers will kill freedom of press.

 

The second threat to freedom of the press is abuse of defamation and libel laws. The origins of defamation date back to Greece. As aforestated, it was in Athens, Greece that certain types of “citizens” were given freedom of expression. But even then, these “citizens” were made answerable for slander and sedition. This restriction was carried on in Roman times and got embedded in English common law. Early English defamation laws were of a different kind. Under early English common law, the truthfulness of a statement is not a defense. Hence, a truthful criticism of the Crown could result in a severe penalty. English common law recognized four types of libel: (1) blasphemous libel, which is any speech that denied the existence of God or ridiculed any Christian doctrine; (2) seditious libel or criticism of the government, its leaders or policies; (3) obscene libel, which is the forerunner of obscenity laws, and (4) private libel, which is speech that injured the reputation of another person. Again, history teaches us that the misuse and abuse of libel laws against media practitioners through the ages did not stamp out the flame of freedom of the press, and it never will.

 

At this point, let me share with you our humble efforts to strengthen democracy in our country by enhancing human rights and giving more flesh to the freedom of the press. On the area  of human rights, our High Court has promulgated the Writ of Amparo and the Writ of Habeas Data. It is interesting to note that the provenance of both the Rule on the Writ of Amparo and the Rule on the Habeas Data is a forum much like this one. The National Consultative Summit on Extrajudicial Killings and Enforced Disappearances, held last July 16-17, 2007 addressed also the culture of impunity that stalks our country.

The Rule on the Writ of Amparo which protects the victims of extrajudicial killings and enforced disappearances took effect last October 24, 2007. In the Supreme Court alone, a total of 14 writs of Amparo have already been issued out of 18 petitions that prayed for the writ. Out of these 14 cases, 5 have already been decided by the Court of Appeals from October 2007 to present.

 

On the other hand, the Rule on the Writ of Habeas Data took effect last February 2, 2008. This rule is an independent remedy to enforce the right to informational privacy and the complementary “right to truth.” It is also an additional remedy to protect an individual’s civil rights. This writ is available “to any person whose right to privacy in life, or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home, and correspondence of the aggrieved party.” Reliefs include the “deletion, destruction, or rectification of the erroneous data or information.” 

Just a month old, no writ of habeas data has been issued yet. It is an excellent human rights tool used mostly in countries recovering from military dictatorships. It enforces the right to truth, which is the bedrock of the rule of law. Observers say that with the promulgation of these two writs, the number of victims of extrajudicial and enforced disappearances had declined. Perhaps it is too early to rejoice over their deterrent effect. This fight for human rights is one fight full of commas and no period; a fight where you never write “30.”

On the second area (i.e. protecting the freedom of the press), the High Court, through the Administrative Circular No. 08-2008, issued Guidelines in the Observance of a Rule of Preference in the Imposition of Penalties in Libel Cases. In this Circular, the High Court directed judges to determine whether the imposition of a fine alone in libel cases would best serve the interest of justice. The High Court cited cases where it refused  to incarcerate those accused of libel but instead penalized them with the payment of fine. Somehow, this Circular has caused Congress to fast track debate on bills decriminalizing libel. I respectfully suggest that Congress should also look into the idea of putting a cap on civil liability for libel of media people. It is not only the threat of imprisonment that handcuffs media. The punches of poverty coming from threats of unlimited civil liability can also convert some of their backbones into mere wishbones. Just a few days ago or on February 15, 2008, we decided the case of Chavez v. The Secretary of Justice and the National Telecommunications Commission (G.R. No. 188338). We struck as unconstitutional prior restraints the warnings issued by the respondent public officials that media people will be prosecuted if they air the controversial wire-tapped conversation between the sitting President and a Commissioner of the COMELEC allegedly revealing fraud in the 2004 national elections.

 Let me submit that attempts to curtail freedom of the press all over the world will never end. We should never weary in its protection. I end by emphasizing just one particular value promoted by freedom of the press— the search for truth. I can do no better than quoting the explanation of First Amendment scholar Thomas Emerson:

xxx A central value of free and open debate is the discovery of truth and knowledge through the free trade of ideas. In language that is reminiscent of John Milton’s Areopagitica and John Stuart Mill’s On Liberty, Emerson stated,

 

an individual who seeks knowledge and truth must hear all sides of the question, consider all alternatives, test his judgement by exposing it to opposition, and make full use of different minds. Discussion must be kept open no matter how certainly true an accepted opinion may be; many of the most widely acknowledged truths have turned out to be erroneous. (Emerson 1970, 6-7)

 

The idea that free expression is central to discovering truth is not just discussed in philosophical tomes of the seventeenth and eighteenth centuries. It appears in Supreme Court Justice Oliver Wendell Holmes’s 1919 dissent in Abrams, in which he passionately stated, “[T]he ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace” (Abrahams v. United States [1919] 630). It also appears in Justice Louis D. Brandel’s 1927 concurring opinion in Whitney, in which he referred to the Founding Fathers and how “they believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth” (Whitney v. California [1927] 374). Brandeis added, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence” (Cornwell, Freedom of the Press, pp. 4-5)

 Today, our society is bedeviled by the enforced disappearances of some votaries of democracy, especially media practitioners. An enforced silence on these enforced disappearances cannot but give impetus to its growing culture of impunity. It is this enforced silence that we ought to break for if there is anything that democracy can ill-afford it is the sovereignty of the deaf and the dumb. It is speech and speech— plus that will dissipate the darkness that today hovers over the heads of the Filipino people. Speech is the function of the press. Speech— plus is the action of the sovereign people. Let them converge for they will lead us to the doorstep of truth.

 A pleasant day to all.      

 

 

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